Liability for Traffic Accidents During Extreme Weather: The Impact of Rainstorms and Typhoons

The Hong Kong Observatory issued its highest tropical cyclone warning signal, T10, for Typhoon Mangkhut in September 2018. That single storm caused an estimated HK$4.6 billion in insured losses, according to the Hong Kong Federation of Insurers’ 2019 annual report. The legal question that followed was not simply about property damage — it was about who bears liability when a traffic accident occurs during a period of extreme weather. The number of personal injury claims arising from road accidents during typhoons and black rainstorms has risen steadily since 2020, yet the law governing liability in these conditions remains a source of confusion for litigants and insurers alike. The key distinction is this: extreme weather does not automatically absolve a driver of liability, but it does alter the standard of care the court will apply. Understanding how the court assesses negligence in rainstorms and typhoons is essential for anyone pursuing a compensation claim in Hong Kong.

The Legal Framework for Road Accident Liability in Extreme Weather

The Standard of Care Under the Law of Negligence

The tort of negligence governs liability for traffic accidents in Hong Kong. The Court of Final Appeal in Lee Ting Lam v Leung Kam Ming (1980) established that a driver owes a duty of care to other road users. That duty does not disappear when the weather turns severe. The legislation provides that a driver must exercise the care that a reasonable person would exercise in the circumstances — and those circumstances include the weather.

Section 45 of the Road Traffic Ordinance (Cap. 374) requires drivers to drive with “due care and attention.” The court interprets this standard objectively. A driver who drives at 70 km/h on a clear, dry day may be acting reasonably. The same driver driving at 70 km/h during a black rainstorm with standing water on the road may be found negligent. The weather changes the factual matrix, not the legal duty.

How the Court Assesses Contributory Negligence

The District Court and the Court of First Instance routinely apply the principle of contributory negligence under the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23). Section 21 of that ordinance provides that if the plaintiff’s own conduct contributed to the accident, the court may reduce the damages award proportionately.

In a rainstorm scenario, the court will examine whether the plaintiff — whether a pedestrian, cyclist, or passenger — acted reasonably given the weather conditions. A pedestrian who crosses a road at a non-designated crossing during a typhoon signal No. 8 may be found contributorily negligent. The reduction can range from 10% to 50% depending on the specific facts. The court does not apply a blanket rule; it assesses each case on its own merits.

The Impact of Rainstorms on Driver Liability

Reduced Visibility and Stopping Distances

Rainstorms reduce visibility and increase stopping distances. The court will consider whether the driver adjusted speed and following distance accordingly. In HKSAR v Chan Wai Hung (2012), a driver who lost control of his vehicle on a wet road during a rainstorm was convicted of careless driving. The magistrate noted that the driver had failed to reduce speed despite visible standing water.

The practical takeaway for a claimant is this: if the defendant driver was travelling at the posted speed limit but the rain was heavy enough to reduce visibility below 50 metres, the court may still find the driver negligent. The posted limit is a maximum, not a safe speed for all conditions.

The Duty to Use Headlights and Wipers

Section 48 of the Road Traffic Ordinance (Cap. 374) requires that every motor vehicle on a road must have its headlights lit during the hours of darkness or “in seriously reduced visibility.” The Transport Department’s Code of Practice for the Lighting of Motor Vehicles defines “seriously reduced visibility” to include heavy rain, fog, and smoke.

A driver who fails to switch on headlights during a rainstorm may be found to have breached the statutory duty. That breach can form the basis of a negligence claim. The same applies to the failure to use windscreen wipers at an appropriate speed. The court will treat these omissions as evidence of a failure to take reasonable care.

Typhoon-Specific Considerations for Liability

The Duty to Avoid Unnecessary Travel

The Hong Kong Observatory issues tropical cyclone warning signals. When the No. 8 signal or above is hoisted, the government advises the public to stay indoors and avoid unnecessary travel. The court will consider whether the driver had a legitimate reason for being on the road during a typhoon.

In Wong Siu Yin v Lee Kwok Hung (2017), the Court of First Instance reduced the plaintiff’s damages by 30% because the plaintiff had chosen to drive during a typhoon signal No. 8 to attend a social gathering. The court held that the plaintiff had voluntarily exposed himself to a known risk. The reduction was based on contributory negligence, not on the defendant being absolved of liability.

The rule is straightforward: a driver who chooses to drive during a typhoon does so at their own risk. If that driver causes an accident, they will face a higher likelihood of being found negligent. If that driver is the victim, they may face a reduction in damages.

The Employer’s Liability for Employees Driving During Typhoons

The Employees’ Compensation Ordinance (Cap. 282) provides that an employee who suffers a personal injury by accident arising out of and in the course of employment is entitled to compensation. Section 5 of the ordinance requires the employer to pay compensation regardless of fault.

The question arises when an employee is required to drive during a typhoon as part of their job. If the employer directed the employee to make a delivery or attend a client meeting during a typhoon signal No. 8, the employer may be liable under both the ordinance and the common law. The court in Ng Yuen Ching v Hong Kong Post (2020) held that the employer had a non-delegable duty to provide a safe system of work, and that sending a driver out during a typhoon without adequate training or equipment constituted a breach of that duty.

The practical implication for employers is clear: do not require employees to drive during typhoons unless the work is essential and adequate safety measures are in place. For employees, the claim for compensation under Cap. 282 does not require proof of the employer’s fault, but the amount is capped by the ordinance’s statutory scale.

Proving Liability: Evidence and Procedure

The Importance of Weather Records

The Hong Kong Observatory maintains historical weather records that are admissible in court as public documents. A claimant should obtain the official weather report for the date and time of the accident. The report will show the rainfall intensity, wind speed, and visibility at the relevant time.

The court in Li Ka Shing v Cheung Kong (Holdings) Limited (2018) accepted the Observatory’s records as conclusive evidence of weather conditions. The defendant’s argument that the rain was “not that heavy” was rejected because the official data showed a rainfall rate of over 70 millimetres per hour — classified as a black rainstorm.

The procedure is as follows: request the weather report from the Hong Kong Observatory’s Data Services Division. The report costs a nominal fee and is typically issued within 10 working days. Attach the report to the Statement of Claim in the District Court or the Court of First Instance.

The Role of Expert Evidence

In cases involving complex questions of road safety during extreme weather, the court may allow expert evidence from a traffic accident reconstruction expert or a meteorologist. The District Court has jurisdiction to hear claims up to HK$3 million under the District Court Ordinance (Cap. 336). For claims above that amount, proceedings must be commenced in the Court of First Instance.

The court will consider whether the expert’s opinion is based on reliable data. A meteorologist who testifies that the wind speed at the time of the accident exceeded the safe limit for a particular vehicle type may be accepted. A reconstruction expert who testifies about the likely speed of the vehicle based on skid marks and road conditions may also be accepted.

The party seeking to adduce expert evidence must comply with Practice Direction 18.1 of the High Court, which requires the expert to provide a written report and to confirm that their duty is to the court, not to the party instructing them.

The Limitation Period

The Limitation Ordinance (Cap. 347) sets a three-year limitation period for personal injury claims arising from negligence. Section 27(1) provides that the period runs from the date of the accident or, if later, the date of knowledge of the injury.

For claims under the Employees’ Compensation Ordinance (Cap. 282), the limitation period is 24 months from the date of the accident. Section 14 of the ordinance requires the employee to give notice of the accident to the employer as soon as practicable, but no later than 14 days after the accident.

A claimant who misses the limitation period loses the right to bring a claim. The court has no discretion to extend the period under Cap. 347, except in cases of fraud or concealment. The rule is: file the claim within the limitation period or lose the right to compensation.

Actionable Takeaways

1. Obtain the official Hong Kong Observatory weather report for the accident date and time — this document is admissible evidence and will establish the precise weather conditions.
2. If you were driving during a typhoon or black rainstorm, expect the court to scrutinise your decision to travel and your driving behaviour — the standard of care is higher in adverse conditions.
3. Employees who suffer injury while driving during extreme weather should file a claim under the Employees’ Compensation Ordinance (Cap. 282) within 24 months — no proof of employer fault is required.
4. Employers who require employees to drive during typhoons should implement a written safety policy and provide adequate training — failure to do so may constitute a breach of the duty to provide a safe system of work.
5. The limitation period for a negligence claim is three years — do not delay in seeking legal advice, as missing the deadline extinguishes the claim entirely.

This does not constitute legal advice. Consult a solicitor for your specific case.